Tuesday, August 3, 2010

I've argued that Senate reform should not try to eliminate holds on executive branch nominations, because they can be a useful part of governance. For an example of what I'm talking about, see this Marc Ambinder post on why John McCain placed a hold on DNI nominee James Clapper:

Sen. John McCain feels stiffed by the White House, which has refused to respond to a letter he sent earlier this year asking about a top secret intelligence program, according to several sources with knowledge of McCain's complaint. He has decided to place a hold on Gen. James Clapper's nomination to be Director of National Intelligence (DNI)until the White House answers his questions, one of which involves a decade-old multi-billion dollar spy satellite program.

For details, read the whole story. More to the point, that was yesterday. Today, Senatus tweeted "McCain spokeswoman says he's released "hold" on Clapper nomination," followed shortly by an Ambinder tweet: "Clapper's free -- McCain releases his hold after his office gets the report on the black budget EO/MASINT satellites."

This all strikes me as a pretty reasonable way to conduct business. The president is always going to try to ignore Congress. Congress needs ways to fight back. Using a hold in this way works well. If the White House (or the agency, if that's the target) doesn't want to do what the Senator wants, it has to balance that against the cost of slowing, or even killing, a nomination. The Senate as a whole has an interest in preserving the rights of individual Senators to have this weapon, as long as it's used against the executive branch.

What's gone wrong in the current Congress is that as far as we can tell from reporting, Republicans have taken to placing holds not for the "good" or "healthy" reason that McCain did in this case, but in order to simply slow the Senate down -- obstruction for the sake of obstruction. The Majority Leader, however, already has a weapon to use if he believes that's the case; he can just ignore holds and move on the nomination anyway (filing for cloture if necessary). Yes, it would take some floor time, but not really all that much, and it's not as if the Senate is currently maximizing its productive hours in session, even if we grant them Fridays through Mondays without voting. Indeed, as I've argued before, my guess is that a whole lot of Republican obstruction of non-controversial executive branch and judicial nominees is just bluff. I tend to take the Majority Leader's side against liberal complaints on the grounds that there's not much he can do when he doesn't have the votes, but this is really the big area where I do think the Democrats have been outmaneuvered for no good reason. Harry Reid (and Barack Obama, who hasn't made confirmations a priority) should do better.

In the bigger picture, Democrats advocating Senate reform should not, in my view, seek to eliminate holds on executive branch nominees. The trick is to design a system that allows individual Senators to attempt to cut deals for specific items, without slowing up the whole process. In return, I think that Senators should return to the tradition that presidents should be able to select executive branch personnel (not necessarily policies, but people), and eliminate filibusters on these nominations (or, perhaps, set cloture at a simple majority of Senators voting).